1972 PLP 109 (SCMR)

SAJJAD AHMAD, J.‑This appeal, by special leave, has been brought in the following circumstances The respondent, Qamar Ali was prosecuted on a police challan under section 324, P. P. C. in the Court of the Sub- Divisional Magistrate, Old Town, Karachi, on the charge that he had caused incised injuries to the appellant Mehboob Ali, on the 11th of January 1967. The case was first tried by Mr. Azizuddin Ahmad, S. D. M., who recorded the evidence of some of the prosecution witnesses, but died thereafter. Mr. Aziz uddin Ahmad was succeeded by Mr. Jamaluddin Jumani, who concluded the evidence and also heard argument on the 28th of June 1967. On the 30th of June 1967, Mr. Jumani, without having written out his judgment in the case, announced the acquittal of the respondent. He also died a few days later, with the result that although the respondent was acquitted by him orally, there was no written judgment on record, as required by law. The appellant took the matter to the High Court by a petition under section 561‑A, Cr. P. C. for quashment of the oral order of the Magistrate, whereby he had pronounced the acquittal of the respondent, so that the respondent could be freshly tried. A learned Single Judge in the High Court held that the order of acquittal purported to have been announced by the late Mr. Jumani on the 30th of June 1967, was not a valid order in law. In fact, no such order was in existence. Nevertheless, the learned Judge dismissed the appellant's applica tion under section 561‑A, Cr. P. C. because, in his view, a remedy under section 350, Cr. P. C. was available to the appellant to approach the Magistrate's Court for further proceedings in the case, and that the remedy sought by him under section 561‑A could not be properly invoked. In this connection, he relied on the observations of this Court in the case of Ghulam Muhammad v. Muzammal Khan and others (PLD 1967 S C 317) in which it was held as follows :‑ "The inherent jurisdiction given by section 561‑A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." The verbal order of acquittal made by Mr. Jumani was obviously a nullity and could be of no avail to the respondent. Section 366, Cr. P. C. provides for the mode of delivery of judgment, requiring inter alia that the whole judgment shall be read out by the presiding Judge, if he is so requested either by the prosecution or the defence. Section 367 states that such a judgment, which has to be written in the language of the Court, has to contain the point or points for determination, the decision thereon and the reason for the decision, and it has to be dated and signed by the presiding officer in an open Court at the time of pronouncing it, and where it is not written by the presiding officer in his own hand, every page of the judgment shall be signed by him. Since there was no judgment in this case duly recorded by Mr. Jumani, as required by law, it was clear that the case against the respondent was still pending and it had not come to an end. We consider that the appellant, instead of going to the High Court, should have pursued the matter in the trial Court itself, and the successor Magistrate would certainly have proceeded in the matter, as the verbal order of his predecessor, even if it was given, acquitting the respondent, was wholly illegal. The learned Single Judge, in his order, has refused to give relief under section 561‑A, because, in his view, the alternative remedy of an application under section 350, Cr. P. C. should have been invoked by the applicant. Section 350, Cr. P. C. does not by itself give any right to the complainant to demand the resummoning of the witnesses by the successor Magistrate but leaves it to the option of the Magistrate himself, or, alternatively, to the choice of the accused person, if he so decides. Of course, there was no bar for the applicant‑complainant to move an application to the Magistrate to exercise his duty in the matter and to conclude the case, which was still pending on the file of that Court. We feel that this was a case where the learned Single Judge should have given the direction under section 561‑A in the ends of justice and to prevent the abuse of the process of the Court that the proceedings in this case should be continued by the trial Court in accordance with law, although the same purpose has been served by his directing the complainant‑applicant to make an application to that effect before the trial Court. However, the result, even according to the orders of the learned Single Judge in the High Court, is that the case against the respondent, which is still pending, has to be concluded, and we affirm that direction; with the variation that instead of the appellant making an application in this behalf, the trial Magistrate, in whose Court the case is still pending, i.e. S. D. M., Old Town, Karachi, should issue process for the appearance of the accused‑respondent for further proceedings, so that the case is concluded in accordance with law. Order accordingly. Order accordingly.